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Monday March 02, 2015

The Utter Smallness of King v. Burwell

If Keith Olbermann still did his schtick he might make Michael Greve today's “worst person in the world.” From Jeffrey Toobin's “Hard Cases,” about King v. Burwell, which is being argued before the U.S. Supreme Court on Wednesday:

Shortly after the A.C.A. passed, in 2010, a group of conservative lawyers met at a conference in Washington, D.C., sponsored by the American Enterprise Institute, and scoured the nine-hundred-page text of the law, looking for grist for possible lawsuits. Michael Greve, a board member of the Competitive Enterprise Institute, a libertarian outfit funded by, among others, the Koch brothers, said, of the law, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

I've heard nothing but arguments against King v. Burwell, and the arguments are getting more blistering. The Editorial Board at the New York Times, which doesn't exactly make waves, calls the lawsuit “a marvel of reverse-engineered legal absurdity” and its central claim “baloney.” Others, including in the Wall Street Journal, have argued that the plaintiffs don't even have legal standing in the matter—they haven't proven they were injured by the ACA—so the case should be dismissed on those grounds. An Indiana law professor suggests it would be “embarrassing” if the court didn't dismiss King v. Burwell.

Toobin, in his piece, mostly argues against the smallness of the lawsuit: the four words in dispute (“established by the state”), and how, in better times, the confusion over the four words (if it's even confusion) would be dealt with. Which is to say: not this way.

As for who would be harmed if the ACA is upended? Toobin doesn't exactly mince words:

If the Justices rule for the plaintiffs, the seven and a half million people on the federal exchange who receive tax subsidies will lose them immediately, which means that most of them will also lose their insurance, because they can no longer afford it. Insurance companies will then likely raise rates for the remaining policyholders, many of whom would drop their coverage, leading to even higher rates, and so on; this sequence is known as the A.C.A. death spiral. A remarkable coalition of state officials, insurance companies, hospitals, physicians, and nurses—many among them less than friendly to the Obama Administration—have filed briefs in the case warning of the consequences if the subsidies are withdrawn. A brief written by the deans of nineteen leading schools of public health states with bracing directness that, if the plaintiffs win this case, nearly ten thousand Americans will die unnecessary deaths each year.

Critics of the ACA have always railed on about Obama and his “death panels” but this may be another case of GOP projection.

Q&A with Eugene G. Iredale

Q: Over the course of your career, have the kinds of cases that come to you shifted? If so, does it represent a change in the larger culture?
A: You know what I’ve noticed? The mentality that you used to see only in drug cases is the same mentality that you see in many white-collar cases.

Q: Meaning?
A: Meaning that at some point, the people who do business in this country adopted the ethic of gangsters. Except that the drug dealers are far more honest and straightforward.

-- from my Q&A with San Diego criminal defense attorney Eugene G. Iredale. The whole interview is worth reading even if you don't care about the law but do care about any of the following: nuance, literature, battling against bullies, and “lessons of common human decency and politeness.”

No Reasoning with Conservative SCOTUS

The Supreme Court on Saturday allowed Texas to use its strict voter identification law in the November election. The court’s order, issued just after 5 a.m., was unsigned and contained no reasoning.

The dissent, at least, was signed by Justice Ginsburg, and condemned the Court's conservative branch, as well as Texas, for actions that risk “denying the right to vote to hundreds of thousands of eligible voters.” It's actually more like half a million, she says later in the dissent: 600,000, or 4.5 percent of all registered voters.

Texas' 2011 voter I.D. law went into effect after SCOTUS, in Shelby County v. Holder (2013), struck down Section 5 of the 1965 Voting Rights Act, which required states with a history of disenfranchisement to, as Liptak writes, ”obtain federal permission before changing voting procedure." Since then, the South has been all yee-ha about changing its voting procedures. But legitimately, you understand.

Their argument: voter fraud is so rampant (despite no evidence, and particularly not in-person at the polls) that voters should be required to show a photo I.D. at the polls. Sadly, 600,000 registered voters in Texas don't have a driver's license, gun license, passport or military I.D. But ... SOL. Most of these folks, of course, are minorities.

But it sounds reasonable, doesn't it? Until you realize that, for example, no one in Washington state has to show a photo I.D. to vote, since we're entirely an absentee ballot state now. We must be crawling with fraud.

To me, what Texas and many southern states are doing these days is Jim Crow dressed up. It's James Crow. Too bad the Court doesn't see it that way—or give a reason why they don't.

Boies on Colbert

While P and I were in Europe, super lawyers David Boies and Ted Olson, who argued opposite sides of Bush v. Gore before the U.S. Supreme Court in December 2000, and who became friends afterward and teamed up on the Prop 8 case, were on Stephen Colbert's show. You should watch the whole interview, but this part cracked me up:

Olson: I think that [Bush v. Gore] was a solid decision. Of course, I may be a little biased. But I think David agrees actually.Colbert: I'm afraid we don't have time for his answer.Boies: That's exactly what the Court said.

Even Colbert, master of the quick-witted response, was impressed.

I got to interview both men in January in New York, which was a great if nervewracking pleasure, and even got to correct Mr. Boies on his baseball knowledge. (My wheelhouse, apparently.) He used Babe Ruth as a metaphor for someone who hits a lot of homeruns but still strikes out a lot —more than anyone else in baseball history, he added. I had to tell him that the Babe was usurped in strikeouts long ago, and that Reggie Jackson holds the mark now. In fact, and obviously I didn't have this knowledge at the time, but the Babe is currently 107th on the career strikeout list with 1330—about half of Reggie's total.

That was a small sidebar, of course. Most of our interview was about the law in general, and the push for the federal constituational right for same-sex marriage in particular. Read the whole interview here.

Let me add that I could listen to David Boies talk about almost anything. He has a moment on “Colbert,” and it comes at about 4:40 in the above link, where I just fall in love with him all over again. Not that there's anything wrong with that.